Cause in Fact

Question 1

But For

Answer 1

P’s injury wd not have occurred BUT FOR D’s negligent conduct.

Requires:
Exact ID of D’s negligent conduct

Doctrine that causation exists only when the result wd not have occurred w/o the party’s conduct.

• but for breaks down when concurrent causes create a single injury, but either sufficient to cause injury alone – see Kingston Fire case

Conjecture and speculation CANNOT establish CAUSATION

Question 2

Substantial Factor

Answer 2

the principle that causation exists when D’s conduct is an important or significant contributor to P’s injuries

Question 3

Liability re: D’s Conduct

Answer 3

LIABILITY EXISTS WHEN THE D’S CONDUCT WAS MORE LIKELY THAN NOT THE CAUSE OF INJURY.

Question 4

Joint Liability

Answer 4

JOINT liability:
D’s are jointly liable when there are no reasonable way to apportion damages
Implies that each of several D’s is responsible for the entire loss that they all caused in part.

a. Acts in Concert – common endeavor. Liability on all D’s when harm caused by the 3rd party if D a) acts in concern/ the 3rd party or in pursuit of a common design or plan b) knows that the 3rd party’s conduct constitutes a breach of duty; or C) provides substantial assistance to 3rd party.
b. Successive or Indivisible Injuries – successive injuries to P but impossible to determine which tortfeasor caused which injury; (P rear-ended, then that car re-ended causing more damage.)
c. Vicarious liability – tortfeasor & all persons vicariously liable for acts of tortfeasor are jointly liable to P (liability flows UP – employer and employee)

Question 5

Several Liability

Answer 5

. SEVERAL (“severable”) Liability

Liability is several [severed] when some logical basis can be found for distributing damages among diff. Ds [A shoots B in arm, C shoots B in leg – A responsible for damage to arm, C responsible for damage to leg]

Holds each D responsible only for his proportionate share of loss

COMMON LAW – only option for D is to seek indemnity from co-def for the FULL AMNT of the loss.

Question 6

Joint & Several Liability

Answer 6

Claimant may pursue obligation against any one party as if they are jointly liability & leave it to D’s to work it out.

Question 7

Indemnification

Answer 7

Indemnity often is a contractual obligation of one party to compensate the loss incurred to the other party due to the acts of the indemnitor or any other party. Indemnity allows a D to sue other for the entire amount of the damages.

Question 8

Cause In Fact

Answer 8

Actual Cause is straightforward. i.e.) when a bus negligently strikes a car, the bus is the actual cause of the accident.

Question 9

Proximate Cause

Answer 9

– is the “legal cause” or one that the law recognizes as the primary cause of the injury, it may not be the first event that set in motion a sequence of events that led to any injury, & it may not be the very last event before the injury occurs. Instead it is an action that produced foreseeable consequences without intervention from anyone else.

Question 10

Kingston Rule

Answer 10

1. Where 2 causes, 1 attributable to the negligence of a responsible (known) person; and
2. Each able to alone create, concur, or produce the injury to another; and
3. It is impossible to apportion the damages;
4. Known tortfeasor is responsible for the entire loss.

Question 11

Alternative Liability Theory

Answer 11

Theory of alternative liability dictates that tortfeasors who act in concert will be held jointly & severally liable for P’s injury unless tortfeasors are able to prove that they have not caused harm.

Used most often when 2 or more tortfeasors simultaneously commit independent acts of neglig & only 1 act results in injury – P is relieved from burden of proof w/respect to causation & may sue both tortfeasors w/o direct proof of causation.

Has a limited application & the more the number of D’s, the less likely the court will allow ALT.

Question 12

Joint Tortfeasors

Answer 12

Rule: Under multiple fault and alternative liability – burden of proof shifts to d’s if:
Each is shown to have acted tortuously

Actual wrongdoer is one of the small number of D before the court

Nature of accident makes it impossible for P to prove causation

RULE: JT TORTFEASORS HAVE THE BURDEN OF PROVING WHICH OF THEM CAUSED THE INJURY or both will be liable.

Question 13

Market Share Liability

Answer 13

1. All the named Ds are potential tortfeasors;
2. The allegedly harmful products are identical & share the same defective qualities [they are fungible];
3. P is unable to I.D. which D caused her injury through no fault of her own;
4. Substantially all of the manufacturers that made the defective products during the relevant time are named as Ds.
5. Differs from ALT b/c it eliminates the prerequisite of contemporaneous negligent acts and the requirement of joining all possible tortfeasors.

Question 14

Lost Opportunity Doctrine

Answer 14

Allows P to recover where there is a 50% or less possibility that the D’s negligence caused a P’s injury.

LOD can be seen as allowing a patient to succeed in a malpractice claim, where the malpractice denied P an opportunity to avoid injury, but the oppty to avoid the injury was 50% or less.

Meaning the chances were the person wd have been injured anyway.

This doctrine is not recognized in many states and only pertains to medical malpractice.

Requires extensive expert testimony.